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Steerpike’s Comments

I wouldn't call it a cop-out. It's just a statement of the law. The Constitution is a document intended to define the boundaries of government power. In general, some kind of "state action" is required if you want to bring a Constitutional claim.

But just because something isn't in the Constitution doesn't mean it can't be addressed. We have federal law for that (that's why we have the Civil Rights Act, for example; if you discriminate in your business on the basis of race you aren't violating the Constitution, but you are violating Federal law).

I agree we shouldn't tolerate it, but the fact that it isn't a Constitutional issue doesn't mean we have to tolerate it. We need Federal legislation in place that addresses these matters.

I agree with the vast majority of the criticism of St. Louis and STL County police in handling not only the Rams incident, but the whole Michael Brown case.

But this post is a bit bizarre, in that there is no threat from the police to look the other way if the Rams are threatened, and I don't even think that was a reasonable interpretation of what was said.

The guy goes from the First Amendment comment to talking about who it is who patronizes the NFL. Seems pretty clear the First Amendment comment was about no longer patronizing the NFL or its partners, an even encouraging others to refrain from doing so. The idea that it is a threat not to protect the Rams is a huge stretch...basically just creating a sensational blog post out of nothing.

Roca Labs can't violate anyone First Amendment rights because they're a private party and not the government. However, they're asking for government action here against the speech they don't like, and that has First Amendment implications.

Roca Labs can't violate anyone First Amendment rights because they're a private party and not the government. However, they're asking for government action here against the speech they don't like, and that has First Amendment implications.

Haha. What's up with the ten foot long single piece of crime scene tape that doesn't block anything? People are crossing the street and walking on the sidewalk on the other side of it in the middle of the video.

Yeah, that's right. They have to show those elements are present when they bring infringement claims, either literally or under the Doctrine of Equivalents, which is probably going to be pretty limited in a case like this.

Part of the issue is, the patent examiner has to be able to support rejections with documented evidence (by and large) and the amount of time they have to spend on an application doesn't necessarily allow them to do everything they need. For this patent, since the claim is specific on things like ISO, f-stop, and ratio between light intensities, the patent examiner has to be able to point to that combination out there somewhere.

On a positive note, even though the claim has some wiggle room built in, it's probably going to be fairly limited to the values stated.

a front light source positioned in a longitudinal axis intersecting the background, the longitudinal axis further being substantially perpendicular to a surface of the white cyclorama;

an image capture position located between the background and the front light source in the longitudinal axis, the image capture position comprising at least one image capture device equipped with an eighty-five millimeter lens, the at least one image capture device further configured with an ISO setting of about three hundred twenty and an f-stop value of about 5.6;

an elevated platform positioned between the image capture position and the background in the longitudinal axis, the front light source being directed toward a subject on the elevated platform;

a first rear light source aimed at the background and positioned between the elevated platform and the background in the longitudinal axis, the first rear light source positioned below a top surface of the elevated platform and oriented at an upward angle relative to a floor level;

a second rear light source aimed at the background and positioned between the elevated platform and the background in the longitudinal axis, the second rear light source positioned above the top surface of the elevated platform and oriented at a downward angle relative to the floor level;

a third rear light source aimed at the background and positioned in a lateral axis intersecting the elevated platform and being substantially perpendicular to the longitudinal axis, the third rear light source further positioned adjacent to a side of the elevated platform; and a fourth rear light source aimed at the background and positioned in the lateral axis adjacent to an opposing side of the elevated platform relative to the third rear light source;

wherein a top surface of the elevated platform reflects light emanating from the background such that the elevated platform appears white and a rear edge of the elevated platform is substantially imperceptible to the image capture device;

and the first rear light source, the second rear light source, the third rear light source, and the fourth rear light source comprise a combined intensity greater than the front light source according to about a 10:3 ratio.

I guess the question is whether the film really is a derivative work, and if it is not, does that mean anyone can make a film adaptation of a written work without permission because film adaptations aren't derivative works?

Yes. I think once you've gone through the process you should be able to rely on a presumptive validity of the patent.

The problem is with the examination process, and that needs to be fixed. I think everyone knows the presumption of validity is a bit weak in reality, because the examination process isn't as good as it needs to be.

I guess my first point of attack in solving most of the problems with the patent system would be to focus on examination. If you can actually get to a point where the only patents that are getting allowed are the ones that should be, you take care of a lot of other issues in the process.

The reason they'd be at at disadvantage is because under the treaties you can rely on activities in the U.S. (such as a filing) to establish priority in foreign countries. If the U.S. unilaterally dissolved its patent system and exited the treaty, then businesses in countries all over the world would be able to rely on their domestic activities when going for patents in other countries (EU, China, Australia, Japan, India, or whatever), and U.S. countries would not. It wouldn't hurt the big, wealthy companies as much, for for smaller entities, being able to rely on activities in the U.S. and having that extended time period to go into foreign countries can be critical.

But I think we're both in agreement that big reforms are needed. While we're at it, I'd knock the copyright term down to something reasonable as well, but that's another thread :)

Yeah, you could do that, although to be honest, I think that given the time and expense of getting a patent, and the fact that you've gone through the examination process, there is a good argument that the patent should be presumed valid (i.e. that the patent office did it's job correctly). That's in a perfect world, though, and the USPTO is far from perfect. I'm not sure the presumption of validity gets you are far these days as it used to, though. I think courts and the PTO both recognize that while you should be able to rely on the quality of an examination, it's basically a fiction at this point.

Reform, maybe, if we can muster the political will. I don't see abolition any time soon. There are international treaties involved and no incentive for any one country to unilaterally withdraw and abandon a patent system, putting their own businesses at a disadvantage in the other countries that keep them. So you'd have to get all of the most economically important countries to get rid of patents together. Seems like a long way off, if ever.

On the other hand, we have our representatives in Congress that are supposed to handle this stuff, and that's where people should be focusing attention. I don't think the Supreme Court is going to eliminate software patents with a decision. Software has been patentable for some time in the U.S., and the Supreme Court would probably look at the fact that Congress hasn't acted as indicating a correct interpretation of statute. In fact, 35 U.S.C. 101, which define patentable subject matter, has been interpreted extremely broadly since a 1980 Supreme Court decision. So the Congress has had more than 30 years to do something about it and hasn't acted. They could eliminate software patents overnight, or place new restrictions on them, or whatever. And if we want to get rid of them, that's what Congress is supposed to do. I suspect the Supreme Court will take the view that unless Congress acts to eliminate them, there is no reason to disallow them.

Yes. Or at least, a problem with how prior art is searched and applied. I guess the big question is - how do you fix that? The sheer volume of prior art references is only going to go up. The patent examinations have to be done by a person who can't consider anywhere near the total amount of art out there, and if they can't find prior art to knock out a patent application they don't have much choice about letting it through.

I don't know how you fix that completely. It could certainly be improved. Some people might argue to just get rid of patents, but that's not a practical solution because there's no serious chance of that happening any time soon. So the big question, to me, is if we're going to have a patent system how do we deal with ever-growing numbers of applications and massive increases in the prior art, when you have a finite number of people sitting in the patent office trying to examine patent applications?

Yeah. That gets back to the searching problems. Some examiner's are just bad. But most of them aren't. The problem is, the only way they can decide whether one is deserved is by looking at the prior art in front of them and comparing it to what the applicant is claiming for patent. If they're missing important prior art, then the patent may get through. Part of the reason we have the kind of proceedings that Apple is involved in right now is because third parties often have a better incentive and better resources to find the best prior art out there. So, in a way, the system is set up to acknowledge that patents are going to get through that shouldn't, and the idea is that some of the bad ones will be caught in post-grant proceedings, or in court, or whatever.